Wednesday, 7 May 2014


(Bangalore property|apartments|flats|lands for sale in Bangalore)

Everyone dreams to own some shelter of his/her own during his/her life time.But, unless the property purchaser adopts safeguards while finalizing the deal with the vendor, he/she is most likely to land in uncalled for litigation, loss of time and money. For peaceful possession and enjoyment of the property by the purchaser,the property  should have clear marketable title free from encumbrances preferably with vacant possession.

To know whether the property is free from litigation and the vendor has a clear and marketable title of the property, it is necessary to examine  the title deeds of the property very scrupulously. Ownership of the vendor can be traced from the title deeds and revenue records.Mere tracing of the title on the basis of the records available would not suffice.Examination of the genuineness of the records, identification of the property, verifying of all the original documents with the records of the  concerned Governmental authorities, issuing notification in newspaper and physical possession of the title of the property are some of the important functions required to be performed  while scrutinizing the property documents.

The below mentioned safeguards may to a certain extent protect the interest of the purchasers:
The first and foremost exercise the purchaser or his advocate has to undertake before entering into any agreement with the vendor is to scrutinize the title deeds of the property under consideration.Since it  is the duty and responsibility of the purchaser's advocate to safeguard the interest of his client, he shall have to minutely scrutinize the title deeds of the property to ascertain the marketable title and genuineness of the documents.While so doing,the advocate shall examine the risk involved in the transaction and guide his client suitably.

Origin of the Property
Tracing of the  origin of the property is a very important step in the scrutiny of property documents.Origin of the property is also called “Root of Title”. It  is the safest way to determine the origin of the property and trace its marketable title. It is necessary to examine the title of the property for a minimum period of 42 years. In cases of adverse possession against individuals or conflicting claims, other than mortgage, documents covering a minimum period of more than 12 years is necessarily to be checked.  As regards the period of limitation against the Government, documents covering a minimum period of 30 years must be checked.  If a person is enjoying the property for more than 30 years, he will get title by adverse possession against the Government under the Limitation Act, 1963. As per Section 90 of the Indian Evidence Act 1872, the document executed 30 years before is presumed to be valid.These are all the general principles. However, the number years referred to above  would vary  depending upon the documents made available for scrutiny.

Subsequent Transfers
After ascertaining the origin of the property, there should be a methodical examination of subsequent events of transfer and other  transactions relating to the property in a sequential order.Here, the purchaser's advocate has to very carefully look into all aspects from  legal angle as to how the property was transferred from the previous owners till it reached the hands of the  present owner.The transfer may be by possession, inheritance, settlement, will, sale, mortgage, release, gift etc. The advocate has to carefully examine these deeds and other supporting documents like revenue  and other property records to get a clear picture as to the  valid marketable title of the vendor. Verification of identity of the parties and their family connections, ascertainment of existence of any court litigation/proceedings pending before any court of law or  other legal forums or authorities including revenue authorities in respect of the property under consideration is also necessary.

Statutory Clearance
All the statutory clearance required for an effective transfer of the property in favor of the purchaser must be obtained before executing the Deed of Conveyance.The purchaser must be apprised of  the need of obtaining statutory clearances from various authorities like revenue, land reforms, income tax, etc.,  for an effective transfer of the property in his favor.

Present Status
Present status of the property is the most important aspect to be looked into before purchasing  the property.The advocate who has experience in property documentation can easily find out as to whether the present owner has valid and marketable title over the property or not.For this purpose he shall examine the  title deeds and other supporting documents available with the vendor. At the same time, the advocate shall also find out  as to the existence of the legal heirs of the vendor.If there exists legal heirs and  if they are major in age, the advocate  shall   ensure the legal heirs  presence while executing the Deed of Conveyance. If they are minors, the vendor has to get the permission from the court before executing the Deed of Conveyance.

In some cases the vendor may conceal the fact of existence of legal heirs.In such cases, the advocate must ask the vendor to produce either the succession certificate or the family genealogical tree issued by the revenue authority. If necessary he must see the family ration card for practical  clarification.

The advocate must find out in whose name the Khatha stands, whether the khathedar possesses up-to-date tax paid receipt in his name and up-to-date Encumbrance Certificate to establish his right, title and interest in the property. The advocate has to check the Encumbrance Certificate covering a relevant period, generally from  12 years upto 43 years to ascertain whether any charge is created on the property and the type of charge, and whether such an encumbrance is presently subsisting or not.Municipal and other revenue authorities to maintain records from which it could be ascertained as to who is presently  in possession of the property according to their records, what is the amount of tax payable on the property and upto what period tax has been paid. 
Genuineness of documents
After thoroughly scrutinizing the property documents, the purchaser or his advocate has to cross  check  all documents furnished by the vendor with the records of the concerned departments  to ensure that the documents produced by the vendor  are genuine; that they are originated from the concerned departments and that they are not fake. In addition, the advocate has to find out from the department whether there is any notification or proceedings against the property or the present owner.In the case of buildings, it must be ensured that demolition notice  has not been served  on the vendor.

Identity of the property
The identity of the property is to be carried out by visiting the spot. The measurement of land mentioned in the documents must tally with actual physical measurement. It must also be ensured that there exists no encroachment of the property. In case there exists encroachment, the measurement of the available land must be recorded and this must be mentioned in the Deed of Conveyance.The boundaries as shown in the schedule of the property must be physically verified on the spot. Also, the purchaser may make enquiries tactfully with the adjacent property owners about the ownership of the property he is proposing to buy.

Paper Notification
There may be some grey areas in the property title of the vendor, such as pending litigations, agreements entered  into by the vendor with others, claims of legal heirs,  etc., on account of which even after examining the various documents, the Advocate may not be able to find out whether the property is truly and completely  free from any claim. Therefore, the paper notification could  help the purchaser to get response from the  genuinely affected party which in turn would help the purchaser to know the clear and marketable title of the vendor.

Though paper notification is optional, it is always advisable to notify in a leading local newspaper about the buyer's intention to purchase a particular property to safeguard the interest of the purchaser.

Physical Possession
In the case of a vacant site, the purchaser may,with the permission of the vendor fence the property with barbed wire or he may construct a compound wall and put a signboard before purchase of the property to indicate ownership of the property.

After entering into an agreement to sell, the purchaser need not close his eyes shut and proceed to finalize the deal. Therefore, even after entering into an “Agreement to Sell”, the purchaser must  continue to make enquirers to make doubly sure of the valid and marketable title of the vendor. Upon such enquirers if it is found that there are defects in the title of the  property, which are not discernible in the ordinary course examination of documents, the purchaser could withdraw from the transaction even when there exists an agreement to sell. However, a mere suspicion of fraud that cannot be proved will not make the title doubtful and the purchaser cannot disapprove  the title on that ground.

A reading of the above would go to show that tracing of title of  property is a specialized job.Services of well  experienced advocates in property documentation would immensely help the purchaser in his  peaceful possession and enjoyment of  property free from litigation.


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